Bill Would Ban `Don't Tell' Malpractice Agreements

April 11, 2003|By JACK DOLAN; Courant Staff Writer

Patricia Cheh wanted two things after her infant son nearly suffocated in the womb during labor at Danbury Hospital: help paying for the brain-damaged child's lifetime of medical bills and a public warning about the obstetrician she said left for dinner knowing her unborn baby showed signs of distress.

But as is common practice in Connecticut, lawyers for the doctor and hospital made a request of their own before offering to pay Cheh close to $2 million: Don't tell anybody, even state health department investigators, what had happened to her son.

A bill to ban the practice of preventing settlement recipients from reporting their experiences to state regulators unless regulators use a subpoena to force their testimony will be heard today by the state legislature's judiciary committee, which oversees state courts.

Quietly tolerated for years in Connecticut, these ``no cooperation'' agreements have come under fire in many states where doctors use them as protection against investigations that could lead to disciplinary action.

``It's an inappropriate burden to put on the patient, and an egregious and odious attempt to stifle the work of the board,'' said Nancy Achin Audesse, executive director of the Massachusetts Board of Registry in Medicine, which licenses and disciplines doctors in that state.

Pam Wood, general counsel for the Massachusetts board, said such requests are indefensible as public policy, calling them the equivalent of trying to ``coerce somebody, or pay them off, in order to keep them from cooperating with a law enforcement investigation.''

The standard ``no cooperate'' agreement in Connecticut acknowledges that patients would have to speak to state investigators if served with a subpoena or ordered by a court. But for regulators to employ those heavy legal weapons, they first have to know that a potential medical error was committed and start an investigation -- something made more difficult if patients have signed an agreement preventing them from filing a complaint.

``Part of the agreement is that you can't disclose that you have signed such an agreement,'' said Chris Bernard, president of the Connecticut Trial Lawyers Association, which supports the bill to ban them. ``So you can't even tell the state regulators why you won't talk.''

Bernard said the lawyers' association wants the ``no cooperation'' agreements banned because they exert tremendous pressure on plaintiffs who would like to see the state warn future patients about a doctor, but who often have large medical bills and can't afford to turn down the money.

If the state takes disciplinary action against a doctor after an investigation, the results become public and are noted in the doctor's record on the health department's Physician Profile website.

Officials from the Connecticut Medical Insurance Co., the doctors' cooperative that insures more than half of the physicians in the state, declined requests for an interview for this story. But a statement from Denise Funk, the organization's chief executive officer, said:

``CMIC understands the trial lawyers association's interest in exploiting this issue. However the public should be aware that settlements are a voluntary private contract between the parties involved. The public's interest is protected by the Department of Health, whose job it is to investigate all payments made on a physician's behalf.''

Settlements are reported to the National Practitioner Data Bank, a federal repository of malpractice payments, state license actions and hospital disciplinary actions opened in 1990 to prevent problem doctors from bouncing from state to state. State health departments are required to query the databank before granting a license to a doctor, but as a matter of practice most do not routinely check it for clues about doctors who should be investigated.

Health department officials have historically taken a laissez-faire approach to the controversy over ``no cooperation'' clauses.

``It's not our place to dictate what kinds of agreements private parties can make in civil lawsuits,'' said Department of Public Health attorney Stanley Peck.

While acknowledging that the language of such agreements could have a ``chilling effect,'' Peck said the clause allows patients to talk if the health department issues a subpoena, so he doesn't think it seriously harms the department's ability to gather information.

But that assumes investigators from the health department learn about the case at all. Traditionally, the department has relied on complaints from the public to launch investigations of malpractice cases against doctors.

Of Patricia Cheh's two concerns, collecting the money was the easy part. Probate records show that Danbury Hospital settled out of court for $1 million. The obstetrician, Dr. Kenneth Blau, settled for $750,000.

But the public warning about her doctor was another matter.

Cheh refused to sign a ``no cooperation'' clause. Instead, she and her husband immediately filed a complaint with the state health department.

But the state's inquiry overlooked one seemingly crucial step: The investigators never called the Chehs to get their side of the story.

``It was so hurtful, it was such a one-sided investigation,'' Cheh said. ``I don't know who they talked to, but it wasn't us.''

The department's standard procedure when a patient files a complaint is to interview the doctor and collect the patient's medical records from the hospital. The patient is only interviewed if investigators decide it's appropriate, said William Gerrish, a health department spokesman.

``What kind of investigation was that?'' asked Bernard, who represented the Chehs. ``To conduct an investigation, you'd think they would need some information from the parents. They were eyewitnesses.''